Failure To Comply With California Workplace Seating Requirements Puts Employers At Risk

By Christopher S. Andre and Scott K. Dauscher

Most employers in California are subject to the workplace seating requirements contained in the Industrial Welfare Commission Wage Orders, which regulate wages, hours, and working conditions in specified industries and as to specified occupations.  Wage Orders 1-13 and 15 all contain the following seating requirements:

(A)  All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.

(B)  When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.

Those requirements are somewhat relaxed as to employees employed in agricultural occupations and as to certain occupations in the construction, drilling, logging, and mining industries.  Wage Order 14, which governs persons employed in an agricultural occupation, requires that "[w]hen the nature of the work reasonably permits the use of seats, suitable seats shall be provided for employees working on or at a machine."  Wage Order 16, which governs certain occupations in the construction, drilling, logging, and mining industries, states, "[w]here practicable and consistent with applicable industry-wide standards, all working employees shall be provided with suitable seats when the nature of the process and the work performed reasonably permits the use of seats."  

The penalties for seating violations can be very substantial.  As we previously reported here, in Bright v. 99¢ Only Stores (2010) 189 Cal.App.4th 1472, the California Court of Appeal held an employee may seek California Labor Code Private Attorneys General Act of 2004  ("PAGA") penalties for alleged violations of an IWC wage order requirement that employers provide employees suitable seats.   The court rejected the employer's argument that PAGA penalties are available only for violations of wage payment laws and concluded such penalties are available for violation of nonwage labor standards contained in the IWC's wage orders. The plaintiff in the case, Eugenia Bright, alleged 99¢ Only Stores violated Section 14 of Wage Order 7-2001 stating all working employees “shall be provided with suitable seats when the nature of the work reasonably permits” such use.  She sought civil penalties under Labor Code section 1198, stating the employment of any employee “under conditions prohibited by” IWC wage orders is unlawful.  The court held civil penalties available under PAGA, consisting of $100 per each "aggrieved employee" per pay period for the first violation and $200 per "aggrieved" employee per pay period for each subsequent violation, could be recovered because no other penalties for violating the seating requirements were provided by law.  As we previously reported here, In Home Depot U.S.A., Inc. v. Superior Court (2010) 191 Cal.App.4th 210, which also involved the provisions of Wage Order 7-2001 stating the all working employees “shall be provided with suitable seats when the nature of the work reasonably permits” such use, the California Court of Appeal again held PAGA penalties can be awarded for violations of IWC wage orders.  In so holding, the court rejected Home Depot's contention that PAGA penalties are not available for violation of the wage order because PAGA penalties are available for violations of the Labor Code "except those for which a civil penalty is specifically provided," and the wage order contains its own civil penalty provisions (in lesser amounts than those provided by PAGA).  In response to that argument, the court held Wage Order 7-2001 does not specifically provide a civil penalty for violation of the wage order's seating requirements.  Further, the court noted that the civil penalty provision of the wage order states its penalties are "'[i]n addition to any other civil penalties provided by law,'" which the court interprets to mean the the wage order "does not purport to establish a comprehensive scheme of penalties for violations of the wage order."

In light of the increasingly frequency of class action lawsuits alleging seating requirement violations, it is especially important that employers make certain they are in compliance with the seating requirements contained in the IWC wage orders. Such compliance review should include in most instances looking at both  whether the nature of an employee's work would reasonably permit the use of a seat while working and whether the nature of the work would reasonably permit the employee to use a seat when not engaged in active duties during the workday.  The penalties and attorney's fees can be quite substantial, and we believe most courts would conclude that the nature of the work reasonably permits the use of seats in many instances.  

California Supreme Court Denies Review Of Decision Holding PAGA Penalties Are Available For Seating Requirment Violations

By Scott K. Dauscher and Christopher S. Andre 

As we previously reported here and here, two recent decisions of the California Court of Appeal hold an employee may seek Private Attorney General Act ("PAGA") penalties for alleged violations of an Industrial Welfare Commission ("IWC") wage order requirement that employers provide employees suitable seats in the workplace when the nature of the work reasonably permits the use of seats.  For example, in Bright v. 99¢ Only Stores (2010) 189 Cal.App.4th 1472, the court held civil penalties available under PAGA, consisting of $100 per each "aggrieved employee" per pay period for the first violation and $200 per "aggrieved" employee per pay period for each subsequent violation, could be recovered because no other penalties for violating the seating requirements were provided by law.

This week, during the California Supreme Court's (usually) weekly conference, the court declined the petition for review of the Court of Appeal's decision in Bright v. 99¢ Only Stores.  Review by the California Supreme Court is nearly always discretionary, meaning the court can simply decline to review a lower court decision if it chooses to within its discretion.

Now that the Supreme Court has declined review of Bright v. 99¢ Only Stores, it is especially important that employers make certain they are in compliance with the seating requirements contained in the IWC wage orders. The penalties can be quite substantial, and we believe most courts would conclude that the nature of the work reasonably permits the use of seats in many instances. 

Failure To Provide Seats To Employees Class Action Lawsuits Start To Roll In

By Scott K. Dauscher and Christopher S. Andre

As we reported here, the California Court of Appeal recently issued a decision holding that an "aggrieved" employee can seek against his or her current or former employer penalties under the California Private Attorneys General Act of 2004 penalties for failing to provide to employees as required by an applicable Industrial Welfare Commission ("IWC") wage order.  Specifically, In Home Depot U.S.A., Inc. v. Superior Court, which also involved the provisions of Wage Order 7-2001 stating the all working employees “shall be provided with suitable seats when the nature of the work reasonably permits” such use, the California Court of Appeal again held PAGA penalties can be awarded for violations of IWC wage orders.  In so holding, the court rejected Home Depot's contention that PAGA penalties are not available for violation of the wage order because PAGA penalties are available for violations of the Labor Code "except those for which a civil penalty is specifically provided," and the wage order contains its own civil penalty provisions (in lesser amounts than those provided by PAGA).  In response to that argument, the court held Wage Order 7-2001 does not specifically provide a civil penalty for violation of the wage order's seating requirements.  Further, the court noted that the civil penalty provision of the wage order states its penalties are "'[i]n addition to any other civil penalties provided by law,'" which the court interprets to mean the the wage order "does not purport to establish a comprehensive scheme of penalties for violations of the wage order." 

Today, plaintiff attorneys filed in the Los Angeles County Superior Court three class action lawsuits against major retailers seeking seeking PAGA penalties for alleged failure to provide to employees seats as required by IWC Wage Order 7-2001.  Unfortunately, we expect many more such class actions will follow.

Court of Appeal Reiterates That PAGA Penalties Are Available For Wage Order Violations

By Christopher S. Andre and Scott K. Dauscher

As we previously reported here, in Bright v. 99¢ Only Stores (2010) 189 Cal.App.4th 1472, the California Court of Appeal held an employee may seek Private Attorney General Act ("PAGA") penalties for alleged violations of an Industrial Welfare Commission ("IWC") wage order requirement that employers provide employees suitable seats in the workplace when the nature of the work reasonably permits the use of seats.  The court rejected the employer's argument that PAGA penalties are available only for violations of wage payment laws and concluded such penalties are available for violation of nonwage labor standards contained in the IWC's wage orders. The plaintiff in the case, Eugenia Bright, alleged 99¢ Only Stores violated Section 14 of Wage Order 7-2001 stating all working employees “shall be provided with suitable seats when the nature of the work reasonably permits” such use.  She sought civil penalties under Labor Code section 1198, stating the employment of any employee “under conditions prohibited by” IWC wage orders is unlawful.  The court held civil penalties available under PAGA, consisting of $100 per each "aggrieved employee" per pay period for the first violation and $200 per "aggrieved" employee per pay period for each subsequent violation, could be recovered because no other penalties for violating the seating requirements were provided by law.  

In Home Depot U.S.A., Inc. v. Superior Court, which also involved the provisions of Wage Order 7-2001 stating the all working employees “shall be provided with suitable seats when the nature of the work reasonably permits” such use, the California Court of Appeal again held PAGA penalties can be awarded for violations of IWC wage orders.  In so holding, the court rejected Home Depot's contention that PAGA penalties are not available for violation of the wage order because PAGA penalties are available for violations of the Labor Code "except those for which a civil penalty is specifically provided," and the wage order contains its own civil penalty provisions (in lesser amounts than those provided by PAGA).  In response to that argument, the court held Wage Order 7-2001 does not specifically provide a civil penalty for violation of the wage order's seating requirements.  Further, the court noted that the civil penalty provision of the wage order states its penalties are "'[i]n addition to any other civil penalties provided by law,'" which the court interprets to mean the the wage order "does not purport to establish a comprehensive scheme of penalties for violations of the wage order." 

California courts have yet to squarely address the issue raised by Bright and now by Home Depot as to whether in some circumstances a plaintiff current or former employee could in some circumstances seek both wage order civil penalties and PAGA civil penalties.  Although we do not believe an award of such double penalties would be lawful, we think it is likely plaintiff attorneys will argue based on remarks contained in  he Bright and Home Depot cases that such double recoveries are permitted.